Divorcing couples to undertake mandatory mediation before heading to courts

Divorcing couples will be forced to attend a compulsory mediation awareness session before they are allowed to use the courts, the Ministry of Justice has formally announced today.

Last week The Lawyer revealed how the Family Mediators Association is currently assessing whether it has enough mediators to cope with the new demands that will come into place on 6 April (16 February 2011).

Justice minister Jonathan Djanogly said: “Currently many people repeatedly go to court to argue over matters they’re better placed to sort out themselves – like securing 30 minutes extra contact time or varying their allocated contact days. This is expensive and emotionally draining for all concerned.

“Parents are best placed to resolve these types of issues and mediation can help them do this.”

Family lawyers said the mediation, launched as the MoJ plans a dramatic reduction in legal aid funding for divorcing couples, would not offer a one-stop solution for all couples.

Resolution chair David Allison commented: “Resolution fully supports mediation as an option for those couples for whom it’s appropriate and is pleased that this initiative will give greater awareness to mediation.

“We do have concerns about the provision of information and assessment being limited to mediation at the expense of other options such as parenting information programmes and collaborative law. Mediation is only part of the solution and the use of the full range of non-court options should be encouraged and incentivised.”

Under the new rules the spouse who initiates the case will first go to a professional mediator, who will be required to engage the other party and arrange a mediation awareness session to explain the process to the couple – either together or individually. They will be required to present evidence of this before their case will be accepted by the court.

Reaction:

The Law Society: “The Government is creating a myth that mediation is a panacea in order to justify cuts to legal aid which will take areas such as this, where people desperately need advice out of scope. Divorce can raise very difficult problems and people going through it need legal representation to ensure that they aware of all their options and the strength of their position. Mediation cannot resolve a dispute if there is an imbalance of power between the parties, or if one side is being obstructive or withholding information. Nor does it work if parties are forced into the process. If mediation does not result in an agreement, it will add cost and time to the divorce process which cannot be in the interests of the parties.”

Thomson Snell & Passmore partner Joanna Pratt: “The family court system is overloaded with cases, and mediation has a number of advantages over the adversarial, court focused approach to resolving issues following the breakdown of a relationship.  Mediation is actively encouraged, and sometimes ordered, by judges dealing with family cases. However mediation is not suitable for all couples.  Even if there are no domestic violence or child protection issues, there can sometimes be such a significant power imbalance in a couple’s relationship, that mediation does not enable the ’weaker’ party to properly represent what they want to say.”

Withers partner Suzanne Todd: “An agreement that has been mediated or produced in mediation can be tailored to each individual family’s needs and can take account of all of their personal circumstances.  It is particularly valuable where the interests of children are at the heart of the matter.  This government initiative will help to promote the whole range of alternatives that are available so that clients are informed about the options that best suit their family.”

Prolegal head of family Jonathan West: “One of the drivers behind this decision is the proposed changes to Legal Aid which will push more people to act as litigants in person, further clogging up the court system. Compulsory mediation is a way for government to keep as many cases as possible from reaching an already overstretched judiciary. And the truth of the matter is that some judges find that referring matters such as boundary disputes to mediation relives them of hearing some of the more tiresome cases on their lists.”